LAWJOBS.COM S.F. BAY AREA JOB LISTINGS

January 23, 2013

First District May Have Vacancy Soon

We’re hearing that James Marchiano, presiding justice of the
First District Court of Appeal’s Division One, is nearing retirement. Marchiano was feted by his colleagues earlier
this month and is said to no longer to be taking new cases, although it’s unclear
whether he’s set a formal retirement date.

Marchiano did not respond to a voice mail or email Wednesday,
and his Division One colleague, Justice Sandra Margulies, referred an inquiry
to him.

A fixture in the Contra Costa County bench and bar, the
affable Marchiano would mark 25 years of judicial service this summer. He
served 10 years on Contra Costa County Superior Court before his appointment to
the court of appeal by Gov. Pete Wilson in 1998 and subsequent elevation to the
PJ role in 2002 by Gov. Gray Davis.

A Democrat who was twice appointed by Republican governors,
Marchiano generally produced straightforward opinions free of ideological or rhetorical embroidery. He wrote the opinion last year upholding the
involuntary manslaughter conviction and two-year sentence of BART officer Johannes
Mehserle for the shooting of Oscar Grant. He ruled in 2011 that a cat owner
could recover reasonable medical expenses for wrongful injury of
the pet, even if they exceeded the pet's market value. And in 2009 he struck down a controversial state law that provided for
incarceration of certain low-level substances abusers, on the grounds it was
inconsistent with the 2000 drug diversion initiative Proposition 36.

“Even if these provisions of Senate Bill 1137 could be
deemed to further Proposition 36's public health purpose, they would still be
unconstitutional because they are inconsistent with the proposition's other
primary purposes of saving jail cells for violent offenders and saving money
with use of treatment instead of incarceration,” Marchiano wrote in Gardner v.
Schwarznegger.

As a superior court judge, Marchiano was seen as the driving force behind a program that used direct calendaring, mediation and short trials with pro tem judges to reduce the court's civil backlog.

Marchiano was a litigator with Crosby, Heafey, Roach & May and Bledsoe, Smith, Cathcart, Boyd & Eliot before joining the bench.

In a 2001 profile of the judge, Kathleen Banke -- then a Crosby, Heafey appellate partner and today a Division One colleague of Marchiano's -- credited him with "the consummate judicial temperament."